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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dague v. State (12/05/2003) sp-5761

Dague v. State (12/05/2003) sp-5761

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


MICHELE K. DAGUE,             )
                              )    Supreme Court No. S-10385
                              )
                Petitioner,         )    Court of Appeals No.  A-
7125
                              )
      v.                        )    Trial Court No. 3AN-S97-3317
Cr.
                              )
STATE OF ALASKA,              )
                              )    O P I N I O N
                              )
                Respondent.         )    [No. 5761 - December  5,
2003]
                              )



          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from  the  Superior Court  of  the  State  of
          Alaska,  Third Judicial District,  Anchorage,
          Milton M. Souter, Judge.

          Appearances:    Kathleen  Murphy,   Assistant
          Public  Defender,  Barbara K.  Brink,  Public
          Defender,  Anchorage, for  Petitioner.   W.H.
          Hawley,   Jr.,  Assistant  Attorney  General,
          Anchorage, Gregg D. Renkes, Attorney General,
          Juneau, for Respondent.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.


I.   INTRODUCTION

           Michele Dague admitted responsibility for the death of

a ten-month-old child in her care.  The only issue in dispute was

whether  Dague  had  acted "knowingly" - with  awareness  of  the

nature  of her act - when she swung or threw the child against  a

hard  object.   This  is  an element of the extreme  indifference

second-degree  murder  charge  against  Dague.   At  trial  Dague

attempted to question the State's expert witness regarding  three

items of interest:  the dynamics of child abuse, the mental state

of  abusers  generally,  and the expert's opinion  about  Dague's

mental  state  at  the  time  of the  incident.  Dague  hoped  to

demonstrate  to the jury this expert's belief that  most  abusers

act unknowingly.  Dague also hoped to elicit testimony that would

add  credence to her own expert's parallel testimony, as well  as

her   expert's   specific  conclusion  that   Dague   had   acted

"reflexively."  The trial court initially ruled that the  State's

expert  did  not  have the proper expertise and a jury  convicted

Dague  of second-degree murder.  Ultimately, the court of appeals

held  that,  though the State's expert was qualified  to  testify

regarding  Dague's  topics  of interest,  the  exclusion  of  his

testimony was harmless error.  We conclude that the exclusion  of

this testimony was not harmless error and reverse and remand  for

a new trial.

II.  STATEMENT OF FACTS

     A.   Facts

           Michele  Dague, age twenty-eight in 1997,  operated  a

state-licensed daycare facility out of her family home, a  duplex

apartment in Eagle River.  At approximately 3:12 P.M. on  Tuesday

January  28th, Dague dialed 911 from her residence  and  reported

that a baby in her care was seriously hurt.  She informed the 911

operator  that  the baby was having a hard time breathing.   When

the  operator  inquired  as to how the baby  was  injured,  Dague

hesitated,  simply stating that the baby had been on  the  couch.

The  operator  then asked if the baby had fallen off  the  couch.

Dague answered in the affirmative.

           Paramedics arriving on the scene encountered a  tragic

scene:   the  baby, ten-month-old K.T., was barely breathing  and

had  increasing swelling on one side of his head.   Although  the

paramedics were certain that K.T. could not survive his injuries,

they  kept  him  breathing artificially.  One of  the  paramedics

almost  immediately concluded that such dramatic  injuries  could

not  have  occurred from a simple three-foot fall onto a carpeted

floor.

           Emergency room doctors, pediatricians, and child abuse

experts  would soon thereafter reach a similar conclusion.   K.T.

had  suffered  severe trauma to his head resulting in  a  complex

fracture  of his skull so serious that portions of his brain  had

escaped out of the bone chasm.  Despite the unlikelihood  that  a

fall  from  the couch could cause such injuries, Dague reiterated

her   story  to  various  friends,  family,  neighbors,   medical

personnel, and the police throughout the day.

           Eventually,  Dague allowed the police to  give  her  a

polygraph about the incident.  The morning of the polygraph Dague

indicated that she had not slept well but nevertheless agreed  to

come  to  the  station.  During a number of post-test  interviews

Dague  changed her story from K.T. falling off the  couch  to  an

admission that she had accidentally dropped the baby.   She  also

revealed  that she may have accidentally dropped a plastic  juice

bottle onto the baby's head, and indicated that there might be  a

bruise on the child's ankle "where I tried to grab his leg" as he

fell.   Dague agreed to return to her residence for a  video  re-

enactment  of  the  incident.  Sometime during the  re-enactment,

Dague  indicated a desire to end the re-enactment and speak  with

an attorney.

     B.   Proceedings

          1.   Trial

            Dague   was   indicted   for  second-degree   extreme

indifference murder and the case proceeded to trial.

               a.   Dr. Krugman

           The State first called Dr. Richard Krugman.  The State

had  indicated in an earlier pretrial notice of expert  witnesses

that "[i]t is anticipated that [Krugman's] testimony will be  the

same  as  what  is  in  his report, as well  as  his  grand  jury

testimony."  At  trial,  the State spent  much  time  going  over

Krugman's  considerable qualifications.  With no  objection  from

the  defense, the State offered Krugman "as an expert in the area

of pediatrics and child abuse."

            Krugman  indicated  on  direct  that,  early  in  the

investigation  of  K.T.'s  death, the  State  had  asked  him  to

determine  whether the incident was an accident or  child  abuse.

When  asked  whether  Dague's explanations  of  the  events  were

consistent with the injury inflicted, Krugman indicated that  the

injuries were so severe that neither a fall from a couch  onto  a

carpeted  floor nor a simple drop onto a kitchen floor  or  other

surface - even followed by a blow to the head from a juice bottle

-  could explain the baby's injuries.  Rather, he concluded   the

injuries could only be explained as "non-accidental."

           On cross Krugman acknowledged that part of the process

in  determining  whether  an incident is  abuse  or  an  accident

involves  "look[ing] at the caretaker or the person who is  being

held  responsible  for that injury."  But when the  defense  then

asked  about  the "dynamics involved in that person,"  the  State

objected  that such questioning was beyond the scope of Krugman's

expertise, was irrelevant profile evidence, and was best  handled

by  a  sociologist  or  "psychologist pediatrician."   The  court

initially allowed the questioning as a legitimate exploration  of

"the  contours  and  the  limits"  of  Krugman's  testimony,  and

indicated  to  Krugman  that he should alert  the  court  if  any

questioning  was  beyond his expertise.   But  when  the  defense

attempted  to  explore the factors of how an abuse situation  can

develop  and  the  State  again objected,  the  court  this  time

sustained  the objection as beyond Krugman's expertise.   Defense

counsel  countered that Krugman had testified similarly at  grand

jury  and in his deposition interview, and had indicated he  felt

comfortable answering such questions.  The court responded  that,

regardless  of  whether Krugman testified about such  factors  at

grand  jury, the State wasn't offering him as an expert  in  that

area,  that  he wasn't the defense expert, and that  such  issues

were  not  covered on direct examination and thus the questioning

was outside the scope of direct examination.

           After  redirect  examination,  the  defense  asked  to

approach  the  bench and requested an opportunity to  recall  Dr.

Krugman  at  a  later time.  The following bench conference  then

took place:

          THE  COURT: Well, he's not your witness,  and
          he - you didn't retain him. The fact that you
          asked him questions outside the scope of what
          he  testified  to  in  the  .  .  .  pretrial
          preparation doesn't mean you have  any  right
          to  call  him  as  your own witness  in  your
          defense case. Ms. Henry?
          
          MS. HENRY [prosecutor]: Well, that's correct.
          I  mean  if  they want to contract  with  him
          that's fine, too. . . .  My position is going
          to  be  the same how that this is beyond  his
          expertise.  They  should  be  bringing  in  a
          sociologist or a psychologist or something.
          
          . . . .
          
          THE  COURT [to defense counsel]: So if you're
          going  to  hold him your agency is  going  to
          have  to be the one that pays the tab, that's
          all there is to it.
          
          MS.  BRENNAN [defense counsel]: Okay,  that's
          fine.
          
Because Krugman was scheduled to fly out that very day, and "it's

not fair to hold him beyond today," the court excused the jury in

order  to  question  Krugman immediately as to  "whether  or  not

there's  any  testimony  he can give."  The  prosecution  sent  a

police  officer  to  retrieve Krugman.  Rather  than  waste  time

waiting  for  Krugman's  return, the  court  then  asked  defense

counsel to go ahead and present by offer of proof the information

they expected to elicit from Krugman's testimony.

           Defense counsel again reiterated that they were simply

seeking to explore what Krugman had already testified to at grand

jury:   how  abusive  situations  arise.   Specifically,  defense

counsel expected Krugman to again testify that:

              any  person has the propensity to hurt  a
               child;
               
              stress can sometimes "set the person off";
               
              the  child's  behavior might trigger this  type  of
               situation;
               
              sometimes  "it's  just dumb luck that  the  planets
               could  be  aligned" and various  factors  cause  a
               person to lose control and commit an unintentional
               act; and
               
              a quick 911 call might be an indication that such abuse is an

isolated  incident.        At this point the  court  inquired  of

defense counsel whether they had given notice of Krugman being an

expert with respect to these theories.  Defense counsel responded

that  they  had  relied on Krugman's grand  jury  testimony,  and

expected  him  to  testify likewise at  trial.   Throughout  this

exchange,  the  State's position was that  such  information  was

outside  Dr.  Krugman's  expertise  and  was  best  left   to   a

psychologist,  social worker, or psychiatrist.   Concluding  that

the  information was not only outside of Krugman's expertise  but

was  also  outside  the  scope  of the  direct  examination,  the

superior  court  refused  to  allow  defense  counsel  to  recall

Krugman, not even for additional voir dire questioning.

               b.   Michele Dague

           Michele  Dague elected to take the stand  in  her  own

defense.   She  first testified to the various stressors  in  her

life  around the time of the accident.  Dague's husband, a budget

analyst in the Air Force, was transferred to a base in Alaska  in

April  1994.  Dague immediately became homesick as this  was  the

first  time  she  had ever been away from family and  friends  in

Colorado.  Dague further testified that, after a pregnancy  which

resulted  in  her gaining considerable weight, her husband  spent

more and more time out with his friends, increasing her own sense

of  isolation.  She considered leaving her husband but "wanted to

make it work."  In addition, she testified to increased financial

worries  around the time of the crime, a lifelong  struggle  with

migraine-like  headaches,  and various problems  associated  with

starting up and running a daycare center out of her home.

           Dague's  counsel next turned to the day that K.T.  was

injured.  Dague testified that she had an especially bad headache

that morning, so bad in fact that it was noticeable to L.T.,  who

was  dropping  off her son K.T.  Nevertheless,  Dague  felt  well

enough to handle her daycare duties that day, looking after  K.T.

along with two other children, including her own daughter.

           Dague  described  the events as  they  unfolded.   Her

headache  was  getting  worse  to the  point  where  no  sitting,

leaning, or standing position would give her relief.  She decided

to  take  the children outside to the mailbox to get  some  fresh

air,  but  they were so restless and rambunctious that this  only

made  her headache increase, and so she marched them back inside.

She  laid K.T. on the couch, removed the other children's  coats,

and  then  picked K.T. up again and carried him into the kitchen.

Her head was still throbbing.  She closed her eyes, K.T. screamed

in  her  ear,  and  then "I threw him."  She testified  that  she

neither  planned  nor  meant to do such a  thing,  that  it  just

happened out of the blue.

           Near  the end of Dague's direct testimony, her counsel

inquired  as  to  why  she  had lied to  the  police  about  what

happened.  She responded, "I live with this every day, and I lied

about  it because it couldn't have happened that way.  I couldn't

have  done that.  I wouldn't have done that. . . .  I just  don't

want   to   believe  that  I  did  it."   Dague   then   answered

affirmatively  when  asked whether she  was  "telling  the  truth

today."

          On cross, inconsistencies in Dague's story were brought

to  light.   The district attorney requested that she demonstrate

how  she threw K.T.  After re-enacting the throw, Dague was asked

if she knew how K.T. had received a bruise on his ankle.  Despite

the  fact that she had at one point informed the police that K.T.

might have a bruise on his ankle from where she tried to stop his

fall,  she now indicated that she did not know how he might  have

received  the injury.  The prosecutor then asked her if  she  had

swung  rather than thrown the baby, "You grabbed his  ankle  that

caused  the  bruise  and you swung him into some  object,  didn't

you?"   Dague answered "No."  A few moments later, the prosecutor

referenced a transcript of Dague's prior statement to the  police

about the bruise on K.T.'s ankle.  This time, when asked if she'd

grabbed K.T.'s ankle, Dague responded "I think so," but she again

denied ever swinging K.T.

           On  redirect examination Dague testified that she  was

not really focusing on K.T.'s ankle at the time of the crime, but

that she was not disputing that he had a bruise there.

               c.   Dr. Aaron Wolf

           Dague's expert testimony came from Dr. Aaron S.  Wolf,

the  last  witness  to testify.  A psychiatrist,  Wolf  evaluated

Dague in September of 1997 for between an hour and an hour and  a

half.   He also had reviewed the grand jury testimony and  K.T.'s

medical records.

           Wolf  testified that child abusers come from all walks

of  life  and  that almost anyone has the potential  to  abuse  a

child.   Medical professionals look for signals demonstrating  an

increased propensity to abuse.  One such factor is stress, be  it

from  one's  social  isolation, one's  medical  condition,  one's

financial  condition,  etc.   In  addition  there  is  usually  a

"triggering mechanism[] on the part of the child," which sets off

the chain of events, such as heavy diarrhea, constant fussing  or

crying, or in the case of older children, verbal "sassing."

           Wolf  then  described all the factors in Dague's  life

that  may  have led to the crime.  He noted that she was  new  to

Alaska  and  without a support system.  He also  pointed  to  the

recurring headaches that she had complained about to her  doctor,

her friends, and most notably to K.T.'s mother on the morning  of

the crime.

           Defense  counsel also asked Wolf whether it  would  be

difficult for Dague to replicate the event as she was asked to do

in  the  re-enactment  video and again in  the  courtroom.   Wolf

explained that "this would be a very stressful setting to try and

replicate  something."   He  added  that  to  replicate  such  an

incident  might be impossible: "I'm not convinced that  she  knew

exactly how she did it that time.  So she may very well have done

it to the best of her ability here."

           Finally, Wolf described Dague's "loss of control" as a

"reflexive" action,

          a  much more basic reflex of not - not  using
          our  thinking brain, not using our cortex and
          .  .  .  as the focus of getting rid  of  the
          pain,  not  having  the pain  be  there,  not
          having the noise be there of reflexively  not
          having that pain right by her ear.
          
In  his  expert opinion, then, Dague was not aware that  she  was

throwing the child.

           On  cross the State attempted to discredit Dr.  Wolf's

testimony focusing on (1) his tendency to testify for the defense

in  criminal  cases,  (2)  the relatively  short  time  he  spent

interviewing  Dague,  and  (3)  the  fact  that  "most  of   your

experience  in  the  field of psychiatry is treating  those  with

substance  abuse  problems or . . . sex offenders,"  rather  than

child  abusers.   The State also noted that his conclusions  were

for  the  most part based upon what Dague had told him.  Finally,

the State questioned Wolf's proclaimed "use" of a certain book in

his library that the State suggested he had "found" only the week

before  his  trial testimony.  The State's other  main  point  of

emphasis  during cross was the fact that Wolf's report  indicated

that   Dague   suffered  no  loss  of  memory   or   intellectual

functioning.   Wolf  verified that  these  continued  to  be  his

conclusions.

               d.   Closing arguments

           The  State emphasized to the jury in its closing  that

knowledge was the only real issue in the case.  The State  argued

that  Dague's knowledge was readily apparent because she was able

to  recall what had happened and had attempted to cover  up  what

she  had  done.   The  State also appealed to the  jury's  common

sense,  arguing  that  anyone who could  commit  such  a  violent

offense had to know what they were doing.

           The  defense's closing argument countered that Dague's

loss  of  control  was an unknowing reflex action.   The  defense

emphasized  that  Dr.  Wolf's testimony regarding  uncontrollable

reflex  had  gone unrebutted, pointing out that the  State  could

have brought in its own expert to contest Wolf's conclusions  but

did not.

          The defense also implicitly conceded that Dague's trial

testimony had been inaccurate, at one point describing  Dague  as

taking K.T. by the ankle and smashing him into a hard object, and

also  admitting that Dague had to have used more force  than  she

had used in court when she demonstrated with a doll.

               e.   Verdict and sentencing

           The  jury found Dague guilty of second-degree  murder.

During sentencing, the superior court judge remarked, "I've never

seen  a  case like this and I hope I never see another one."   He

also  noted that he felt this was a "reflexive sort of act," that

the jury could have gone either way on the "knowing" element, and

that   he  probably  could  have  only  found  Dague  guilty   of

manslaughter.  He then sentenced Dague to forty years with twenty

years suspended on condition that she complete a ten-year term of

probation.

          2.   Dague I - Memorandum Opinion and Judgment, July 5,

               2000

           Dague  appealed the superior court's exclusion of  Dr.

Krugman's testimony.  In Dague I, the court of appeals determined

that  the  failure  of  the court to hold voir  dire  questioning

preemptively barred the defense from offering Krugman's testimony

as  to  the  extent  of his expertise and any  opinions  he  felt

qualified  to  give,  and that this was  error.1   The  case  was

remanded  with  instructions  to  the  superior  court  to  allow

Krugman's  voir dire testimony and make findings to be  forwarded

to the court of appeals.2

          3.   Remand hearing

           The  remand  hearing  consisted  of  two  parts:   Dr.

Krugman's qualifications to testify as to the dynamics  of  child

abuse, and what Krugman would have testified to had he been given

the  opportunity.  The latter is what concerns us here.3  We have

set  out  in the appendix lengthy excerpts of Krugman's testimony

on  remand.   The excerpts include all of his testimony  that  is

relied  on by the parties, the court of appeals, and this  court.

We  have  underscored those portions of Krugman's testimony  that

appear  to  us  to  be particularly relevant to the  question  of

whether Dague acted knowingly.

          As the court of appeals stated in Dague II,

          Dr.  Krugman was asked to testify  concerning
          three subjects:  a description of the factors
          that  can  trigger an adult to  commit  child
          abuse;  general  observations concerning  the
          mental  state  of child abusers during  their
          acts  of  abuse; and a specific diagnosis  of
          Michele  Dague's mental state  when  she  was
          committing her act of child abuse.[4]
          
               a.   Testimony  concerning factors  that
                    can  trigger  an  adult  to  commit
                    child abuse
                    
           Dr. Krugman explained that the propensity for abuse is

potentially  in  any  person.   In  many  instances,  "it's   the

combination  of behavior in the child and a stressed adult"  that

often leads to an "explosion of rage" and subsequent abuse  of  a

child.   Krugman added that social isolation and an inability  to

hand  the  child  off  to  someone else  are  often  contributing

factors.

           A helpful tool for Krugman is the concept of "syzygy,"

"an  unusual  alignment of events that come  together  to  create

something."  "[W]e see those three factors [stress + isolation  +

triggering  event] coming together in the great majority  of  the

cases that we review that are abuse cases . . . ."

          But Krugman was careful to emphasize that there was "no

data"   to  support  the  seemingly  intuitive  conclusion   that

increased stress will increase the propensity to abuse.  He  also

pointed out that most stressed persons never abuse children.

               b.   Testimony  concerning  the  mental  state  of
                    child abusers during their acts of abuse
                    
          Dr. Krugman testified that he was not able to "explain"

the  loss  of  control that leads to abuse, he was only  able  to

observe  it.  When questioned whether abusers are aware  of  what

they are doing, he explained:

                In  my experience, very often they  are
          not  aware  of it at the time it's  happened.
          And, what is characteristic in many cases  is
          that  the  caretaker  who  harms  the  child,
          desperately hopes that what they've  done  is
          not  as  severe  as it is.  And,  often  they
          delay  in  seeking care. . . .  So,  I  think
          there's  a  pressure in abuse, in individuals
          who  abuse  children, to suppress or  repress
          what's  happened.  Because I think they  feel
          very badly as well.
          
Krugman  further explained that, in his estimation, abusers  have

no  intention of hurting the child and in fact are not even aware

that the child is actually going to be hurt:

          I  don't  think there's any conscious thought
          about  consequences much  less  what  they're
          doing  .  .  . this is just a rage where  the
          individual   is   incredibly   stressed   and
          frustrated  and just wants whatever  behavior
          the child was having to stop.
          
          Krugman later offered that "when people lose control in

these types of situations they are not thinking."  On cross,  the

district attorney revisited this subject:

          DISTRICT  ATTORNEY: Can you  say  that  in  a
          situation like this that a person would maybe
          not  know the consequences of what they  were
          doing,  but  know that they were  slamming  a
          baby's  head against a hard object  to  quiet
          him,  or  to  get rid of the  noise,  or  for
          whatever  reason?  But they would  know  what
          they were, the physical action that they were
          taking.
          
          DR.  KRUGMAN:   I think that knowledge  comes
          after  the event.  I'm not sure I can say  it
          comes during the event.
          
           Finally, Krugman explained that he based his  opinions

on  his  "clinical experience with our team and in  studying  and

reading the literature on child abuse . . . ."

               c.   Testimony  concerning Michele Dague's  mental
                    state  when  she was committing  her  act  of
                    child abuse
                    
           As  the court of appeals pointed out in Dague II,  Dr.

Krugman was hesitant to testify about what was specifically going

on  in  Dague's  mind.5  He was also hesitant to agree  with  Dr.

Wolf's conclusions having never seen Wolf's reports or records.6

           However,  Krugman  was willing to answer  hypothetical

questions  regarding Dague.  He testified that he  would  not  be

surprised to hear Dague was having marriage problems, given  that

such  problems cause stress.  He also would not be  surprised  to

hear  that  Dague was concerned about finances, given  that  such

concerns  cause stress.  He would not be surprised to  hear  that

Dague  was  feeling  isolated and homesick after  her  move  from

Colorado,  given  that isolation is a cause of stress.   He  also

stated  that  he  would not be surprised to hear that  Dague  was

experiencing an extremely bad headache that day.  When  asked  if

he  felt  this could contribute to the injuries he had witnessed,

he  answered affirmatively, explaining that "pain is a  stressful

event."

           Defense  counsel also asked Dr. Krugman  a  series  of

questions as to whether he agreed with Dr. Wolf's testimony about

Dague's  mental state at the time.  When asked whether  he  would

agree that Dague was so focused on the pain of her headache  that

she  lost  sight of what she was doing, he responded, "I wouldn't

disagree  with  that.  And I'd probably tend to agree  with  it."

When  asked if he would agree with "a psychiatrist" who testified

that  Dague's  actions  were  a loss  of  control  similar  to  a

reflexive  act,  he hesitated to agree with the  opinion  without

reading   the  psychiatrist's  report,  but  stated  he  wouldn't

disagree with it and that it would be "consistent with cases that

I've seen."

          After testifying that when people lose control in these

situations  they are not thinking, Dr. Krugman was asked  whether

in  his  opinion  Dague's  actions involved  a  loss  of  control

involving an "abuser [who] was not thinking about what they  were

doing."  He responded, "[a]s I reviewed this case, this seemed to

be  a  case of loss of control that happened that one time."   He

later  stated  on cross that "[i]n most cases I don't  think  the

abusive  adult knows what's happening at that moment. .  .  .   I

don't know specifically what was going on in Ms. Dague's mind  at

that time."  When asked whether Dague knew what she was doing  at

the time, he responded "I can't say, for sure."

           At  this point the superior court judge intervened and

inquired   whether   Krugman  could   testify   as   to   medical

probabilities.   Krugman stated that he  could  not  because  "we

can't do those studies."  Krugman explained:

          In my opinion, in talking with the adults who
          have  abused children and in working with  my
          colleagues  at the Kemp Center and  reviewing
          many,  many cases, it is my opinion based  on
          that  clinical  expertise, and  reading  what
          people have written, that most abusive adults
          are  not  cognizant of what they're doing  at
          that time.  That doesn't permit me to give an
          opinion in this specific case because I don't
          have the information to be able to do that.
          
Krugman added that, though it is more probable than not in  cases

like  this  that the abuser was not aware of what was  happening,

"you  can't  apply profile or population type data to  individual

cases.  It's just hazardous."

               d.   Findings on remand

           The  superior court concluded that Dr. Krugman was  an

expert  "on  the  psycho-social factors which  may  affect  child

abusers  when they commit acts of child abuse."  The  court  then

summarized  "with much greater specificity than was  provided  by

defense  counsel in the offer of proof solicited by the court  at

trial, what Dr. Krugman's testimony would have been if allowed to

testify  as a defense witness at trial." These subjects  included

the  dynamics of child abuse, a child abuser's mindset,  and  Dr.

Krugman's  inability  to render an opinion  on  Dague's  specific

behavior and mental state.

          4.   Dague II - Memorandum Opinion of October 10, 2001

           Having  received  the superior court's  findings,  the

court  of  appeals determined that Dr. Krugman's testimony  would

have  provided  only marginal support for the defense.7   Because

the  court  of  appeals concluded that the State's  case  against

Dague  was  strong,  it  held  that the  exclusion  of  Krugman's

testimony was harmless beyond a reasonable doubt.8

          We granted Dague's petition for hearing.

III. DISCUSSION

     A.   Standard of Review

          The court of appeals determined that the superior court

erred  when it ruled that Dague could not call Dr. Krugman  as  a

witness, but then concluded that this error "was harmless  beyond

a reasonable doubt."9  The court of appeals's use of the harmless-

beyond-a-reasonable-doubt  standard  implies  that  the  superior

court's error was constitutional error.  In such cases,

          before  constitutional error may be  declared
          harmless  there are two major hurdles  to  be
          crossed.  First, the beneficiary of the error
          has  the  burden  to show  it  was  harmless.
          Second,  the court passing upon it  "must  be
          able to declare a belief that it was harmless
          beyond a reasonable doubt."[10]
          
           While  not  directly taking issue with  the  beyond-a-

reasonable-doubt standard used by the court of appeals, the State

argues  that the standard for nonconstitutional error applies  to

the  exclusion  of  Dr. Krugman's testimony.   According  to  the

State, the standard is that the "[e]rror is harmless if it  would

not appreciably affect the verdict."  While this is an acceptable

summary   of  the  nonconstitutional  harmless  error   standard,

appellate  courts  must  apply it in a  negative  form.   We  ask

whether  we  are  able to "fairly say that [the  error]  did  not

appreciably affect the jury's verdict."11

           A  person  accused  of crime has a  right  to  present

favorable evidence and this right has a constitutional dimension.12

Whether  this  means  that  every  erroneous  evidentiary  ruling

precluding defense counsel from asking a particular question is a

constitutional  error  is unexplored territory  for  this  court.

Since  the  point  is not briefed and because Dague  was  totally

precluded  from  calling Dr. Krugman, we  would  be  inclined  to

accept  the  court  of appeals's view that  the  error  here  was

constitutional in nature.  But as we view this case the  question

of  which standard should be applied makes no difference, for the

excluded  testimony is not harmless even under the less demanding

nonconstitutional error standard.

          B.     Excluding  Dr.  Krugman's  Testimony   Was   Not
          Harmless.
          
           In  Colt  Industries v. Frank W. Murphy  Manufacturer,

Inc., we stated:

          [T]he  mere  fact  that another  witness  has
          already  testified [on] a certain issue  does
          not foreclose a litigant's right to introduce
          substantiating  testimony.  Juries  may  find
          one witness more compelling than another,  or
          they  may  attribute  greater  weight  to   a
          finding  if more than one expert reaches  the
          same conclusion.[13]
          
This  statement, if anything, underdescribes the potential impact

of Dr. Krugman's excluded testimony.

                     1.    Dr.  Krugman's testimony bolsters  Dr.

               Wolf's testimony.

           Dr.  Wolf's  testimony went to the  central  issue  of

whether  Dague's action was knowing.  He testified that  her  act

was  reflexive rather than knowing.  He described the  conditions

typically leading up to child abuse and found them to be  present

in Dague's case.

           The State attempted to discredit Dr. Wolf's testimony.

It  elicited testimony that he usually testifies for the  defense

in  criminal  cases and that he primarily deals  with  issues  of

substance  abuse and sexual abuse rather than child  abuse.   The

State  also  questioned Wolf about a book concerning child  abuse

that  he  had  mentioned in a pretrial interview.  In particular,

the State was interested in the timing of Wolf's discovery of the

book, Abusing Family.  Wolf admitted that he looked for and found

the  book  "this weekend."  The State also pointed out  that  Dr.

Wolf's conclusions were for the most part based on what Dague had

told him and emphasized that Dague had suffered no loss of memory

or intellectual functioning.

           Dr.  Krugman gave testimony at the remand hearing that

would  have supported Dr. Wolf's testimony in important respects.

He  described  the  same stress factors  leading  to  abuse.   He

described  the typical act of abuse as an explosion  of  rage,  a

description  much  like Wolf's reflexive  action  testimony.   He

stated repeatedly and in different ways that most abusers do  not

act  knowingly.  This testimony would have given strong  credence

to Wolf's testimony that Dague had not acted knowingly.

                     2.    Dr.  Krugman's testimony independently
               supports Dague's defense.
               
           In  addition to giving Dr. Wolf added credibility, Dr.

Krugman's testimony also independently supported Dague's  defense

that  she  had  not acted knowingly.  Although Krugman  at  times

stopped  short of expressing an opinion particular to  Dague,  he

stated  that  he only declined to do so because he had  not  seen

clinical data from the interview with Dague.  Nonetheless he made

it clear that her case seemed to fall within the norm about which

he  was testifying:  "this case is, to me, is like other cases  I

have  seen  in  other situations through my  career,  so  I  feel

comfortable that I, that based on what I've read I understand the

situation  and the stressors and the factors that went into  this

tragic event . . . ."  Similarly, he stated that "based on all of

the  cases I've seen over twenty years, it is more probable  than

not  that in cases like this one the individual was not aware  of

what was happening . . . ."  Krugman also expressed some opinions

particular  to Dague's case.  He stated that it seemed  to  be  a

case  involving a single loss of control.  This is  an  important

point,  considering  his testimony that  during  such  losses  of

control  "most abusive adults are not cognizant of  what  they're

doing at that time."  He also stated that he would probably  tend

to  agree  with psychiatric testimony that at the moment  of  the

abuse Dague had "lost sight of what she was doing."  Krugman also

testified  that  psychiatric testimony that her actions  "were  a

loss  of  control,  it was more like a reflexive  act"  would  be

consistent with cases that he had seen.

                     3.    Dr. Krugman's testimony undermined the
               strength of the State's case.
               
           In  concluding that the prosecution had built  such  a

strong  case at the trial that Dr. Krugman's testimony  would  be

inconsequential,  the  court of appeals relied  on  two  factors,

Dague's  lying and her memory of the assault:  "Dague's  admitted

perjury,  combined with Dr. Wolf's testimony  that  Dague  had  a

clear  memory of the assault, were strong arguments in  favor  of

the  State's  position that Dague had acted knowingly."14   Dague

could  have  used Dr. Krugman's excluded testimony to help  rebut

both of those arguments.

           Although  a jury might conclude that lying  about  the

abuse  indicates that Dague acted knowingly at the  time  of  the

abuse, a conclusion that lying was irrelevant to the issue  would

also  be  supportable.   Dr.  Wolf did  not  appear  to  see  any

necessary connection between lying and knowledge at the  time  of

the  crime.   His  position was that Dague acted reflexively  and

that  she  did  not  know  what  she  was  doing.   Yet  he  also

acknowledged that Dague lied about the events to the  police  and

others.  He testified that fear, shame, or inability to cope with

the  stress  of  trying  to replicate the event  were  among  the

possible  explanations  for  this.  None  of  these  explanations

required  that Dague knew what she was doing when she killed  the

child.   Dr. Krugman did not address lying directly, but  he  did

speak of "a pressure . . . in individuals who abuse children,  to

suppress or repress what's happened."

           As  to  whether  a subsequent memory  of  the  assault

indicates  awareness of its nature at the time of the  act,  both

Drs.  Wolf and Krugman found no necessary connection.   Dr.  Wolf

acknowledged  that Dague had no memory loss from the  event,  but

nevertheless found this consistent with his conclusion  that  the

abuse  was reflexive and unknowing in character.  Similarly,  Dr.

Krugman  declined  to  follow the district attorney's  suggestion

that  a person slamming a baby's head against a hard object would

know  what  she  was doing.  Instead he answered, "I  think  that

knowledge comes after the event.  I'm not sure I can say it comes

during the event."

           We  conclude  that  admitting Dr. Krugman's  testimony

would  have put this case in a different light.  Both the State's

expert  and the defense expert would have been seen to  agree  on

the  causes of this type of child abuse and on the fact  that  at

the  time  of the act of abuse the abuser is probably not  acting

knowingly.   Only  by discounting the testimony of  both  experts

could the jury have concluded beyond a reasonable doubt that  the

knowingly  element  of  second-degree  murder  was  present.   It

follows  that  it  was  not harmless error to  exclude  Krugman's

testimony.

IV.  CONCLUSION

           Because  we  are unable to say that the  exclusion  of

Krugman's  testimony  did  not  appreciably  affect  the   jury's

verdict,  the exclusion was not harmless error.  For this  reason

we  REVERSE the decision of the court of appeals and REMAND  this

case  to  the  court of appeals with instructions to reverse  the

judgment  of  the  superior court and  remand  the  case  to  the

superior        court       for       a       new        trial.15

                            APPENDIX
                                
EB:[defense counsel]      Dr. Krugman, at grand jury in this case
                    you  were asked by the district attorney what
                    can  set a person off to commit such an  act.
                    Can you give your answer again?

RK:[Krugman]             Well, I suppose I could look at the transcript and
               give  you  an  exact answer of what I said  there,
               but,  basically,  the, what generally  happens  in
               this  cases  that  an individual caretaker,  often
               with  a  prior  history  of  abuse  in  their  own
               background, but one who is stressed on -  at  that
               particular moment and taking care of a child  that
               the child has a behavior that triggers an assault.
               And,  as I mentioned earlier in this hearing,  the
               most  common  behavioral trigger is  crying  by  a
               child  and the next most common in older  infants,
               that  is, crying by an infant, and the most common
               in  older  children is loss of  bowel  or  bladder
               control.  So, it's the combination of behavior  in
               the  child  and  a stressed adult that  leads  to,
               often, an explosion of rage and an assault on  the
               child that has consequences.

EB:       At grand jury you also talked about propensity.  That, about
people who had the propensity to abuse a child.  Can you talk  to
us a little about that.

RK:       Yes, I believe, I've said, and I think the literature bears out
that  the, it's not abnormal for anyone to feel as if they  could
abuse  a  child.   That that propensity for abuse is  potentially
within  all of us.  But it is abnormal to do it and the  majority
of  adults  either don't encounter those situations, or recognize
that feeling of frustration or rage and stop and/or get the child
protected in another way.

EB:       Is it fair to say that when someone is getting frustrated and
feeling  like  they  could  hurt the  child,  they  do  have  the
propensity to commit such an act?

Judge:    What was the question?

EB:       That when a parent or caretaker is beginning to feel frustrated
and  beginning to feel upset, that person actually does have  the
propensity to actually hurt the child?

RK:       I prefer to answer that the other way, that given that the
propensity  is potentially within everyone, that the  combination
of  stress  and the behavior of the child and I would add  social
isolation and inability to hand the child off to someone else, is
what leads to the abusive events in children.  I don't think that
stress,  well, I suppose it goes the other way, but I'm just  not
aware  of  any data to support it that the more stress there  is,
the  more propensity to abuse, I don't know.  It seems intuitive,
but I think, I'm not sure I could say that.

EB:       OK.  But, the propensity to abuse, it's everybody.  It's not poor
people, it's not a racial problem?

RK:       This is not a problem that is in any segment.  It can happen in
any  family and often does and in any socio-economic segment  and
in every country in the world that it's been looked for.

EB:       And you've talked this afternoon, previously that, often when
someone  is  abused as a child themselves, they have  more  of  a
propensity to abuse a child themselves.

RK:       Clearly, the risk for being an abuser is much higher in someone
who  was  abused  as a child than someone who is  not.   But  the
majority of abused children do not grow up to be abusive  adults.
So,  starting with an adult who was abused as a child, it is more
likely  that they will abuse children than someone who was  never
abused  as a child.  But I repeat what I said about just  because
one  is abused doesn't mean you will be an abuser, two thirds  of
abused children don't repeat the cycle.

EB:       Is it possible that someone could have the propensity to abuse
even  though  they've had a totally normal childhood and  weren't
abused as a child?

RK:       I suppose it's possible and certainly the literature would
suggest that.  But I would never say anything is impossible.

EB:       And then you did talk about another factor that fits into the
equation is of how a situation like this can arise is stress.

RK:       Yes.

EB:       O.K.  And the stress that can trigger such an event, it can be a
big event in someone's life?

Judge:    It can be what?

EB:       A big fa. a big event, a big factor in someone's life.

Judge:    I don't understand the question.

RK:       I think I do.

Judge:    Well, I need to understand it to so I can understand the ..

EB:       O.K.  Someone can have a large stress in their life.  And that
could cause an event like this to happen, is that fair to say?

RK:       Large stresses like the loss of a job, or financial difficulties
or  death,  or  illness in a family, can exacerbate stress  which
will  contribute to the probability of abuse occurring.   But  it
can  be a small stress like the washing machine breaking and that
could be the so-called, "last straw" that sets someone off, or it
could be other small items.

Judge:    So, in a nutshell, you're saying, underlying stress in a person's
life can increase the risk of committing child abuse.

RK:       Of abuse happening, that's correct.

EB:       Is it fair to say that stress can be a variable?   What's
important  to  me may not be important to you, so how  stress  is
measured is really an individual ..

RK:       Well, stress has to be looked at in the individual context.  It
also  has  to be looked at in the context of having an individual
with  a  background that increases the propensity, and  having  a
child  there and having a behavior by the child.  So,  there  are
lots  of  stressed people who never abuse children.  And  they're
lots  of previously abused adults who never abuse children.  Some
of this is just bad luck as it comes together with an individual,
with  stress, with the child's behavior and the event just coming
together as a cataclysmic event.
EB:       I think the word that you used in our interview was syzygy?

RK:       Syzygy.  That's correct.  S-Y-Z-Y-G-Y, it's an unusual alignment
of events that come together to create something.

EB:       From the cases that you have studied, is it common that in
situations  where there is stress, that marriage is  often,  that
the  marriage -- the person who's accused of the abuse is  having
stress in their marriage?  Is that a common situation?

RK:       There may be stress in marriages or relationships.  Many of the
people  who,  many children are abused in situations where  there
isn't  a marriage, but there are boyfriends or other individuals.
So there maybe stress in one's relationships. Yep.

EB:       And, if you have heard testimony in this trial that Michelle had
been  going through a stressful time in her marriage, would  that
have surprised you?

RK:       No.

EB:       And is it fair to say that money, finances can be a stressful
event in someone's life.

RK:       Yes.

EB:       And would it surprise you if the testimony in this case was that
Michelle was concerned about finances?

RK:       No.

EB:       O.K. And also feeling a lack of control over someone's finances
can  be  a  stressful  event, would it be  surprise  you  if  the
testimony  in this case was that Michelle felt stress because  of
that lack of control.

RK:       No.

EB:       O.K., and you've talked about this a bit, that feeling isolated
is  a source of stress.  Would it surprise you that Michelle  had
moved  from  out of state and was feeling very homesick  for  her
family in Colorado?
RK:       Uh, no.

EB:       And is it fair to say that it's more stressful to take care of
more than one child?

RK:       Yes.

EB:       And, chronic health problems, would you say that those could be
as stressful?

RK:       Chronic health problems can be very stressful, yes.

EB:       O.K.  And if you had heard testimony in this case that Michelle
had an extremely head ache that day, would that surprise you?

RK:       It wouldn't surprise me, no.

EB:       And do you think that something like that could lead to such an
event as this?

RK:       I think something like that could contribute to something like
this.

EB:       And if someone is feeling pain, can that lower your threshold so
that  you would be more apt to have the propensity to commit such
an act?

RK:       I think pain is another stressful event.  I think pain increases
one's stress and that can contribute to this type of situation.

EB:       And you already talked about the triggering event, the most
common ones are crying and loss of bowel movement?

RK:       Loss of bowel or bladder control.

EB:       And when you put all these three factors together it can cause
people to lose control?

RK:       When these three factors, we -- I think the appropriate way to
say  this  is that we see those three factors coming together  in
the  great  majority of the cases that we review that  are  abuse
cases when we have the information.
EB:       And do you actually look for those factors when you review the
cases?

RK:       We do, and that is part of my lectures to investigators and
others   to  deliberately  ask  those  questions  early  in   the
investigation of the case.

EB:       And, can you explain this loss of control that you're talking
about?

RK:       I can't explain it.  I think it's - I hope that when I'm done
with  my day job as Dean and I go back to work in this area full-
time  that in this next decade we can learn a lot more about  the
psychiatric  and  neurologic, particularly  the  neurologic,  and
genetic mechanisms that may take place in these cases, but  right
now  we can't explain it, we can only observe it and look  at  it
from  a clinical perspective based on the cases we've seen.  But,
we  don't have a molecular or specific scientific basis  for  why
this happens.

EB:       But you've studied this phenomenon and spoken to many parents and
caretakers who have been in this situation?

RK:       I've spoken to lots of people about this, yes.  Not just parents
and caretakers, but professionals.

EB:       And, when this loss of control happens, do you think that the
person is aware of what they're doing?

RK:       In my experience, very often they are not aware of it at the time
it's happened.  And, what is characteristic in many cases is that
the  caretaker who harms the child, desperately hopes  that  what
they've done is not as severe as it is.  And, often they delay in
seeking  care.  In contrast to the protective parent  whose  baby
may  have  a  minor accident and thinks the worst.  So,  I  think
there's  a  pressure in abuse, in individuals who abuse children,
to  suppress  or repress what's happened.  Because I  think  they
feel  very badly as well.  Henry Kemp had a very important phrase
that  he taught us that abusive parents love their children  very
much but not very well.  This isn't spiteful, willful events that
happen.   These are explosions of rage that everyone  feels  very
badly about when it's over.

EB:       And, during this explosion, do they mean to harm the child?

RK:       There's no intent in most of the cases that I've dealt with.
This  is not intentional injury for the most part.  We have  seen
some  cases  that are clearly premeditated.  We have  seen  cases
where  children have been tortured over time by individuals,  but
the  majority  of  physical abuse cases in this country  are  not
intentional or willful or torture.

EB:       And during this explosion, the loss of control, are they aware
that the child is actually going to be ultimately hurt?

RK:       I don't believe so.

EB:       And do you think that they're able, during this loss of control,
this  explosion, that they're able to understand the consequences
of what's going to result as a result of their act?

RK:       I think, in that shaking and that explosion of rage or shaking, I
don't think there's any conscious thought about consequences much
less  what they're doing, I think that, I think this is a resu  -
this  is  just a rage where the individual is incredibly stressed
and  frustrated and just wants whatever behavior  the  child  was
having to stop.

EB:       O.K.  If a psychiatrist was to testify in this case said that he
believed  that Michele was so focused on the pain of her headache
and  that  she lost sight of what she was doing at the particular
second in time, would you agree with that?

RK:       I wouldn't disagree with that.  And I'd probably tend to agree
with it.

EB:       O.K.  And if a psychiatrist in this case testified that Michele's
actions  were  -  were a loss of control,  it  was  more  like  a
reflexive act.  Would you agree with that statement?

RK:       Well, again, I think I wouldn't disagree with it, I should be
cautious in saying I'd agree with it because I really don't  know
the  psychiatrist and I haven't reviewed his reports or  records,
but that opinion would be consistent with cases that I've seen.

. . . .

EB:       O.K.  Would you agree with the statement that if someone is in
crisis and they're losing control, they are not thinking?   Would
you agree with that statement?

RK:       I think when people lose control in these types of situations
they are not thinking.

EB:       And is there anything about, anything about this case that you .
is  there anything about this case that what you know about would
make you believe that that was not the case in this case?

RK:       Too many negatives, Ms. Brennan, I'm sorry.

EB:       O.K.  Is there anything that you know about this case that would
make you think otherwise?

Judge:    Otherwise than .

RK:       Otherwise than ..

EB:       That this is a loss of control when the abuser was not thinking
about what they were doing.

RK:       I understand your question, now.  As I reviewed this case, this
seemed  to  be a case of loss of control that happened  that  one
time.

Judge:    It happened what?

RK:       That one time, that led to the tragic death of [K.T.]

Judge:    A one-time loss of control, is that what you're saying?

RK:       I saw nothing in the records that I got that this was anything
other  than a single event and a single loss of control that  led
to his death.

EB:       Thank you.  Your Honor, I don't have anything further.

. . . .
DA:[prosecutor]          O.K.  Of course, now, in this case, we're not
               talking  about  an intentional act.   Because  the
               defendant was not charged with intentional murder.
               So,  basic - so, discussing intention I  guess  is
               really not too relevant.  Would you, would  it  be
               fair  for,  I think you said that in your  opinion
               when  she  slammed  the baby's head  into  a  hard
               object  she  didn't realize or know that  she  was
               seriously injuring a child?

RK:       In most cases I don't think the abusive adult knows what's
happening at that moment.

DA:       O.K.

RK:       I don't know specifically what was going on in Ms. Dague's mind
at that time.

DA:       Exactly.  O.K.  So, you can't say what was going on in her mind?

RK:       I cannot.

DA:       Can you say that in a situation like this that a person would
maybe not know the consequences of what they were doing, but know
that  they  were slamming a baby's head against a hard object  to
quiet  him,  or to get rid of the noise, or for whatever  reason?
But they would know what they were, the physical action that they
were taking.

RK:       I think that knowledge comes after the event.  I'm not sure I can
say it comes during the event.

DA:       O.K.  In this particular case, can you say, for sure, that
Michele Dague didn't know what she was doing?

RK:       I can't say, for sure.

Judge:    Do you have a probability, a medical probability statement to
make?  More likely than not.

RK:       I can't answer that, your Honor, because we - the studies you
would  have  to  do to answer that question would require  us  to
being interviewing hundreds of abusers who have reached the stage
where  they're  comfortable, and/or can remember  what  happened.
So, it's a very, it's as difficult a question to ask - answer  as
how  much force does it take.  We don't know because we can't  do
those studies.

Judge:    So, you cannot say that it's more likely than not that . what was
the exact question?

DA:       All right.  That would be the question.  You cannot say that it's
more likely than not that Michele Dague did not know what she was
doing?

RK:       I cannot say that.  I could only speculate based on my experience
in talking with relatively few people.  And so, I should, I can't
say.

. . . .

DA:       Can you say whether or not this act of taking a baby and slamming
his head against a hard object was a volitional or non-volitional
act?

RK:       Are you asking me if this specific act in this case?

DA:       Yes.

RK:       I cannot answer that.

Judge:    To a medical probability?

RK:       I can't answer to any medical probability that this particular
act was or was not volitional.

Judge:    Is that again a question you might well defer to the psychiatrist
on the treatment team?

RK:       Well, I, uh, I, to answer that question in an individual case,
one  would need to have the clinical data from an interview  with
the abuser and I don't have that information and haven't reviewed
it.   Now,  I  might  offer an opinion if  I  saw  that  kind  of
information.  And, knew the individual, or participated with  the
team  in that evaluation.  But, this appeared to me to be a  very
narrow  question based on this case and I don't have the data  to
be able to answer it, that question.

Judge:    And what sort of data?

RK:       Sorry?

Judge:    And what sort of data would that be?

RK:       Well, the kind of information that would come from clinical
psychiatric or clinical psychological interviews of the abuser, .

Judge:    of the defendant.

RK:       of the defendant in this case.

Judge:    And you've never seen anything of it?

RK:       I have not seen them.

Judge     In this case?

RK:       No.

DA:       Sir, I'd like you to go to page 25 of your interview with the
defense.   And, let me get it in context, here.  Let's  start  in
the  middle  when  Ms. Brennan starts out, when  you  talk  about
people losing it, do you see that?

RK:       Yes.

DA:       O.K.  And she says, when you talk about people losing it, is
there  a difference between someone losing it by shaking a  child
or striking a child or throwing a child and you said, what?

RK:       And I said, is there a difference, I don't know what you mean.

DA:       And she says, in terms of their loss of control.  And what is
your answer?

RK:       I said, No, I don't know if, I don't know that there's a
difference.   Um, and I don't, I don't think we know why  certain
people do what they do when they do it.  It would be nice to know
that but we do know that they do it.

DA:       All right.  Now, in kind of a summary, I, what I'd like to do is
briefly  go through what the court of appeals indicated  we  were
supposed to explore with you.  And, the first is situations  that
lead  to  child abuse.  Why child abuse occurs and why  a  person
might  abuse a child.  Now, I think you've testified to all that,
but can you give us a summary of that?

RK:       Well, child abuse occurs, child abuse occurs all over the place.
It's  here.   And, if we, narrow this, and I assume you  want  to
narrow it to physical abuse of children.

DA:       I'm sorry, yes.

RK:       You don't want to go into .

DA:       Yes, let's do that.

RK:       . sexual abuse or emotional maltreatment.  Physical abuse of
children generally occurs, as I've said before, when an adult  or
other  caretaker,  sometimes another older  child  or  adolescent
often who has been abused in their child hood and who is stressed
and  isolated  encounters a behavior by a child that  triggers  a
rage  and  an assault.  And the abuse varies from a wide spectrum
from a slap that might leave a bruise, to a fracture to burns  to
violent  shaking  or  head  injuries,  abdominal  injuries,  with
significant  orbidity  (ph.) or death.  And that's generally  how
physical  abuse occurs and it occurs in hundreds of thousands  of
cases a year in the United States and all over the world.

DA:       Do you think, is that basically a complete answer of the question
of  why  child  abuse  occurs, and why  a  person  might  do  it,
generally?

RK:       I don't have much time.

DA:       Well, no, I mean, but generally, what I'm saying, and I think
you've said, that you've got the stressors of the abuser and then
the trigger from the victim, basically.

RK:       You have the stressors in the abuser, someone with the propensity
to  abuse,  and  as  I've said, that could be anybody,  but  it's
higher risk in those who've been abused in their childhood.  They
are  under  stress, they are isolated and then the  child  has  a
behavior  that triggers a rage.  And they lash out and  how  they
lash out or what they do and what the injuries are, depends a lot
on the development age of the child as well as on what happens at
that  time.   And that's, some abuse cases are when children  are
scalded  in  tubs.  Others are when children are hit or  smashed.
Some  are kicked in the belly and get abdominal injuries.  Babies
are violently shaken.

Judge:    And in many of them, nothing happens.  Right?

RK:       And then in other cases, either, well, if nothing happens then
it's not abuse.  But there are also abusive events that are, that
occur  but never come to our attention that we see later when  we
see  healing fractures or scars or other burns.  And, so  all  of
these  kind  of  depend  on the development  of  the  child,  the
individual  and the situation.  And that's why I say you've  kind
of got to look at these cases, one at a time.

DA:       Right, O.K.  Again, in summary, then, would it be fair to say
that  generally,  child  abuse occurs when  certain  events  come
together  as you've stated where the abuser is stressed for  some
reason, and the child, in this case an infant, triggers something
and  normally, a lot of times that's by being fussy, or incessant
crying, is that correct?

RK:       Fussy or crying are others, yes.

EB:       Dr. Krugman, during your course of expert, of, during your
professional history you've studied a lot of different  types  of
child abuse cases, is that correct?

RK:       That's correct.

EB:       O.K.  And is it fair to say that when you see these cases,
although each case is different on its own merits, that there's a
lot  of  common denominators between all the different  types  of
cases?

RK:       There are common denominators and those are the ones I've really
highlighted  today with the behaviors, the stress, the  isolation
in physical abuse cases.

EB:       O.K.  And, when you talked about the, the caretaker or the parent
who  does the abusing, and when you talked about that the  person
doesn't  know what they're doing, you are basing that opinion  on
all  these,  on all the past experience that you've had  studying
this whole phenomenon, is that correct?

RK:       I'm basing that opinion on my clinical experience with our team
and in studying and reading the literature on child abuse, yes.

EB:       And do you feel confident about that opinion?

RK:       Do I feel confident about that?  Sure.

EB:       And, so when you see these cases come across your desk, when you
study  them and, when you see these cases come across your  desk,
it's  your opinion how these explosions happen that based on  the
different cases that you studied, people don't have knowledge  of
what they're doing?

Judge:    You lost me on that one, Ms. Brennan.

EB:       I know.  I'm sorry, I'm getting kind of tired.

O.K.  You've testified that people are not aware of what they're doing in
these  types of cases. O.K.  You're not making that opinion  just
in a vacuum?
RK:       No.

EB:       How are you basing them?

RK:       With the exception of the cases that are torture, or are
intentional or deliberate, and I've seen a number of those cases,
but they're not the majority.  In my opinion, in talking with the
adults who have abused children and in working with my colleagues
at  the  Kemp  Center and reviewing many, many cases,  it  is  my
opinion based on that clinical expertise, and reading what people
have  written, that most abusive adults are not cognizant of what
they're  doing at that time.  That doesn't permit me to  give  an
opinion   in  this  specific  case  because  I  don't  have   the
information to be able to do that.

EB:       That's all the questions I have.

DA:       No, I have no other questions.

Judge:    So, basically you're telling us you don't have enough of a
statistical  study in order to draw an inference in a  case  like
this.  You have to have specific clinical factors.

RK:        To  have an opinion about a specific - what a specific
individual's  state of mind was, and what the  likelihood  is  of
that  person  being  aware or not aware  would  require  specific
clinical  information  from  that  individual.   And  that's  not
available.

Judge:    Whereas, on the other hand, if you had a broad statistical study
you could at least make a probability statement based on what you
thus far learned about this case.  Is that a fair statement?

Judge:    .but you're lacking that.

RK:       That is a fair statement, sir.  But, and I can say, that based on
all of the cases I've seen over twenty years, it is more probable
than not that in cases like this one the individual was not aware
of  what  was  happening, but as I said before, you  can't  apply
profile  or population type data to individual cases.  It's  just
hazardous.

Judge:    There are far too many other factors that are individual to the
specific situation and the particular persons involved.

RK:       That's correct.
Judge:    .than just these few factors we've talked about.

RK:       That's correct.

Judge:    And some of those other factors that are so specific and so
individual can be the determining factor or (inaudible)

RK:       They can be.  And I've seen cases where a specific, I don't know
whether you want an example of what I'm saying, but, I saw a case
where  the  way  a  child  smiled at a  caretaker  reminded  that
caretaker of what, and it's actually in the transcript, here,  of
the  interview, reminded the caretaker of an uncle who had abused
her years earlier.  And, she saw that uncle and smashed the child
into  the ground.  Now, I don't think she was aware at that  time
that  this baby wasn't her uncle and I think her rage at an uncle
led to the death of that child.

Judge:    And that's the sort of thing that defies statistical analysis.

RK:       That could not have been done statistically and it's, that, we
found  out  about that through a psychiatric evaluation  of  that
person for a sentencing hearing.

Judge:    When you had no such information in this case?

RK:       I had no .  no.

Judge:    In this particular case?

RK:       In this particular case I had no such ..

Judge:    The one in court today?

RK:       That's correct.

Judge:    Let me ask you a couple of other questions.  Maybe you've
answered  these already.  I tend to think perhaps  you  have.   I
want to frame them carefully.  Do you consider yourself qualified
to  testify to the psychological, psychiatric factors that caused
or  materially contributed to a specific incident of child abuse,
or  is  that something you need to place substantial reliance  on
another member or member of your treatment team?

Do you want me to repeat it?
RK:       No, I understand the question.

Judge:    I'm talking specifically about causation ...

RK:       Uh,

Judge:    .contributing materially.

RK:       There is enough information in the materials I review in cases
like  this  one  that give me a sense of what I believe  went  on
clinically.   But,  I  do  not have the specific  psychologic  or
psychiatric data in this case .

Judge:    . I understand.

RK:       . to be able to testify as to what happened.  But, this case is,
to  me,  is  like  other cases I have seen  in  other  situations
through  my career, so I feel comfortable that I, that  based  on
what  I've read I understand the situation and the stressors  and
the factors that went into this tragic event.  But, I, not to the
depth  that  I  could  explain it in psychiatric  or  psychologic
terms.

Judge:    Not to the depth to where you could render an opinion specific to
this particular case .

RK:       Specific to this .

Judge:    . on causation

RK:       .particular person.

Judge:    Yes.  In this case in court here today.

RK:       In this case.  Yes.

Judge:    O.K.  Given further information, you feel you could do so.
RK:       Given further information it is probable that I could.
_______________________________
1Dague  v.  State (Dague I), Mem. Op. & J. No. 4241,  2,  (Alaska
App., July 5, 2000), 2000 WL 881393, *1.
2Id. at 3, 2000 WL 881393 at *1.
3In  Daque  II, the State conceded that Dr. Krugman  demonstrated
sufficient  expertise at the remand hearing to testify concerning
the dynamics of child abuse.  Dague v. State (Dague II), Mem. Op.
&  J.  No.  4468,  14 (Alaska App., October 10,  2001),  2001  WL
1205313, *8.
4Id.
5Id. at 16-17, 2001 WL 1205313 at *9-10.
6Id. at 16, 2001 WL 1205313 at *9.
7Id. at 21, 2001 WL 1205313 at *12.
8Id.
9Id.
10Love v. State, 457 P.2d 622, 633 (Alaska 1969) (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)).
11Id. at 632.
12Smithart v. State, 988 P.2d 583, 589 & n.30 (Alaska 1999).
13822 P.2d 925, 932-33 (Alaska 1991).
14Dague II, Mem. Op. & J. No. 4468 at 14, 2001 WL 1205313 at *8.
15In  defense  of  the  judgment the State  argues  a  number  of
additional  points.  These grounds have been  considered  and  we
conclude  that  they  were correctly resolved  by  the  court  of
appeals.